This is an appeal against conviction and sentence.The appellants
were charged with contravening section 3(1) of the Gold Trade Act
[Chapter 21:03] (the Act) “Possession of gold without a licence or
permit.”It was alleged, that, on the 26th day of June 2013, at
around 23:00 hours, and at Mukombe Complex, ...
This is an appeal against conviction and sentence.
The appellants
were charged with contravening section 3(1) of the Gold Trade Act
[Chapter 21:03] (the Act) “Possession of gold without a licence or
permit.”
It was alleged, that, on the 26th day of June 2013, at
around 23:00 hours, and at Mukombe Complex, Tsholotsho Business Centre
the two were unlawfully found in possession of gold without a licence or
permit contrary to the Gold Trade Act.
The facts are that the
two appellants were at Mukombe Business Centre when the first appellant
was searched and found in possession of a gold nugget which he intended
to sell.
The first appellant was arrested and he implicated the second appellant as the owner of the gold.
The second appellant was arrested and admitted ownership of the gold.
The gold was assayed and found with gold concentrate of 0.0291g valued at $1=11.
Both appellants pleaded guilty and were found guilty as charged.
No special circumstances were found and they were sentenced to the mandatory five years imprisonment.
Aggrieved,
the appellants appealed against both conviction and sentence. In their
notice of appeal, they indicated the following to be grounds of appeal.
“Ad conviction: 2nd appellant
(1)The learned magistrate erred in finding the 2nd appellant guilty of the crime of possession of gold when 2nd appellant was in fact not in possession thereof and when a claim of ownership thereof did not and does not amount to possession.
(2)The learned magistrate erred in holding that there was common purpose in a crime of possession stricto.
Ad sentence 1st and 2nd appellant (sic)
(3)
The learned magistrate erred in holding that there were no special
circumstances to warrant imposing (sic) a lesser sentence than the
statutory 5 years in that:
3.1 The value involved being that of US$1 ought to have been considered as a special circumstance.
3.2 The 1st appellant was clearly a youthful offender and this element of youthfulness being a special circumstance.
3.3 The appellants stated that they were looking for money for food, a clear sign that, albeit, working they were not being paid, and, if they were paid, they were not being paid enough to sustain themselves. The appellants committed the crime out of starvation and necessity to sustain their lives and produced it to buy food with it.
3.4
The cumulative effect of the mitigating factors amounts to a special
circumstance sufficient to influence the court not to impose the
mandatory minimum penalty.
(4) The learned magistrate erred,
further, in failing to ask the appellants why they committed the offence
and the circumstances surrounding the commission of the offence as this
would have armed the court with enough knowledge to whether special
circumstances did exist or not, or, alternatively, understood whether or
not there were compelling reasons not to impose a minimum mandatory
sentence.
(5) The learned magistrate erred in failing to enquire,
after he summoned the appellant's employer to court, specifically to
find out if there were any special reasons or not, if the employer was
paying the appellants their salaries or not.
Wherefore, the appellants pray that:
(a) The conviction in respect of 2nd appellant be set aside. In the event that it is sustained;
(b)
That the court finds that there were special circumstances in this case
sufficient to warrant the setting aside of the sentence of 5 years and
substituting it with that of a wholly suspended 5 year sentence, or,
alternatively, community service or the payment of a fine.”…,.
Let me deal first with the two grounds of appeal against conviction.
The
synthesis of the first ground is that since the second appellant was
not in physical possession of the gold he cannot be guilty of the crime.
Counsel
relied on two cases on his proposition that section 3(1) of the Gold
Trade Act penalizes only an individual who is found in possession of the
gold and that “common purpose on a statutory crime of possession
stricto does not arise.”
The two cases relied on are:
(i) S v Anand 1988 (2) ZLR 414 (S).
(ii) S v Moyo 1988 (2) ZLR 79 (H).
I must hasten to point out, that, both cases do not support the submissions by counsel.
I
am of the view, that, they were cited for purposes of either misleading
the court or as a result of thorough misunderstanding of the principles
stated therein.
In S v Anand 1988 (2) ZLR 414 (S), the issue was
whether a mandatory minimum sentence for possession of uncut emeralds,
unless special circumstances exist, could be imposed on a wife who had
taken blame for offence of a husband.
It was held, that, the fact
that the appellant probably possessed the emeralds on behalf of her
husband and that his moral blameworthiness was far higher than hers
constituted special reasons for not imposing the mandatory minimum
sentence.
In fact, on page 417B-C it was stated that:
“What it all means is this. The appellant and her husband had knowledge
of the presence of the gold and the emeralds in the doll with a sewn
button. They had physical control and possession of the gold and the
emeralds: see R v He Kawter [1986] LRC (Crim) 552 at 607; (1985) 157 CLR
523 at 589 per BRENNAN J. With the aid of the envelope, the State
proved beyond reasonable doubt the necessary element of possession. The husband's reluctance to have the doll opened in the absence of his wife established that he knew what was hidden in it.”…,.
In
S v Moyo 1988 (2) ZLR 79 (H) the accused was convicted of an offence
under the Precious Stones Trade Act 1978, the section under which he was
convicted being one which carried a mandatory minimum sentence of three
years imprisonment unless special reasons were found to exist. There
was a four year delay in finalizing the appellant's matter.
On
appeal, it was held that “special reasons” under the Precious Stones
Trade Act, are factors arising either out of the commission of the
offence or peculiar to the offender, which are out of the ordinary
either in their degree or their nature.
The excessive delay in
bringing the accused to trial was a factor peculiar to him which was out
of the ordinary in its degree. Had he been tried within a reasonable
time, as is required by the Constitution, it was likely that the total
punishment would have been reduced because a court will always have
regard to the cumulative effect of punishment.
I have
deliberately gone to some length in outlining the facts and legal
principles in these two cases in order to demonstrate their apparent
irrelevancy in the matter before the court.
These two cases, therefore, do not take the second appellant's argument any further.
Equally untenable is the second appellant's argument that “possession should only attach to the holder not the owner.”
The clear answer to this rather surprising submission is to be gleaned from section 3(1) of the Gold Trade Act which states:
“No person shall, either as principle or agent, deal in or possess gold unless –
(a) He is the holder of a licence or permit; or
(b) He is a holder or tributor; or
(c)
He is the holder of an authority, grant or permit issued under the
Mines and Minerals Act [Chapter 21:05] authorizing him to work an
alluvial gold deposit; or
(d) He is the employee or agent of any
of the persons mentioned in paragraphs (a), (b) and (c) and is
authorized by his employer or principal to deal in or possess gold in
the lawful possession of such employer or principal; and deals in or
possess gold in accordance with this Act and the licence, permit,
authority or grant, if any, held by him.”…,.
By employing the
phrase “either as principal or agent” the legislature intended to
exclude the requirement that the possessor must have physical custody of the gold.
The
meaning of the word “possess” in the Gold Trade Act would have been
substantially different if the legislature had simply said “no person
shall possess gold…,.”
In casu, the second appellant admitted not
only that the gold belonged to him, but, more significantly, that he
had given the first appellant the full mandate to possess and sell it
for and on his behalf.
This obviously makes him the first appellant's principal.
The first appellant was the agent.
Both
had knowledge of the presence of gold in the first appellant's custody.
Both knew that neither of them had a licence or permit to possess gold.
In
these circumstances, it would be absurd and illogical to punish the
first appellant and let the second appellant go scot-free.
The legislature plugged this loophole by encompasing 'principals' or 'agents' in the essentials of the crime.
Assuming that this is insufficient a reason to dismiss these grounds, I now turn to common law principles.
This will also cover the second appellant's ground of appeal against conviction relating to absence of common purpose.
The concept of possession is discussed in Volume II Common Law Crimes: South African Criminal Law and Procedure by PMA HUNT.
It is said, at 733, that –
“1. Physical Aspect
X
does not need to handle the property physically in order to assume
custody and control. If, on his orders, it is locked in his cellar or
car or in his minnows cellar or car it makes no difference that he has
not even seen it, let alone touched it. Moreover, control may be assumed
by one of the modes of constructive delivery, and it may also be
exercised mediately.
It is often largely a common sense matter of
degree to determine whether X's actus amounts to an assumption of
custody and control when the thief (Z) retains control, to a greater or
lesser extent, or hands over control for a limited period.”…,.
In casu, the following is what transpired when essential elements were put:
“Q.
Correct that on 26 June 2013, and at around 23:00 hours, and at Mukombe
Complex Tsholotsho Business Centre you had 0.0298 grammes of gold?
A. Accused 1 – Yes.
Accused 2 – Yes.
Q. Did you know that you had such gold in your possession?
A. Accused 1 – Yes.
Accused 2 - Yes. I knew that Accused 1 had gold because it was mine.”…,.
Later, during the inquiry into whether or not special circumstances exist, the following exchange occurred:
“Q. Accused 2, any special circumstances in your case?
A. I am the one who gave Accused 1 the gold to sell.
I was once employed and my employer left without giving me my salary. I
then went on to sell the gold so that I could raise money for food.”…,.
Quite clearly, this exchange shows, that, the gold was, on Accused 2's orders, placed on Accused 1's person.
It makes no difference that it was not in Accused 2's pockets.
The two were together at the time of arrest. They admitted possession of the gold and that the purpose was to sell it.
Physical
handling of the gold is not necessary before criminal liability is
ascribed. At law, Accused 2 had custody and control of the gold.
Consequently, this ground of appeal is dismissed....,.
It was contended, that, the applicants acted out of necessity in that they were not being paid their salaries by their employer or that if they were ever paid it was insufficient to sustain themselves.
Therefore, so that argument went, they acted out of starvation and necessity.
In my view, the defence of necessity must be confined within the strictest and narrowest limits because of the danger attendant upon allowing a plea of necessity to excuse criminal conduct.
In S v Beaule 1984 (2) ZLR 146 (S) it was held that for an act to be justified on the ground of necessity;
(a) A legal interest of the accused must have been endangered;
(b) By a threat which had commenced or was imminent but which was -
(c) Not caused by the accused's fault; and, in addition, it must have been -
(d) Necessary for the accused to avert the danger; and
(e) The means used for this purpose must have been reasonable in the circumstances.
In the present case, the appellants had other means open to them which they should have pursued before resorting to the final drastic step of stealing from their employer and possessing gold without a licence or permit.
They should have sued the employer for non-payment of wages.
I should point out, that, necessity has not been established on the facts of this case in that it has not been explained by the appellants why and how they travelled a distance in excess of one hundred kilometers i.e. Bulawayo to Tsholotsho. If they found themselves without food in Tsholotsho was this not their fault? What were they doing in Tsholotsho when they were employed in Bulawayo?
The magistrate was also criticized for not asking the reason why they committed the offence.
However, this criticism is unwarranted and unjustified in that the record shows that they gave a full explanation, namely, that they wanted to buy food.
There is therefore no merit in this argument.
The final ground of appeal is that the magistrate should have asked the appellants employer whether or not he had paid their salaries.
As I pointed out above, assuming the question had been put and the answer was in the negative this would not have amounted to special circumstances in this case. The reason is simply, that, other lawful options exist for remedying such non-payment of wages.
In any case the appellants failed to put this question to their employer when he was in the witness stand despite earlier on having raised that issue.
